Nagy v Marton

Supreme Court of NSW|2014-04-29|Before: Hallen J, Young J, Holland J, Santow J

254 Kembrey v Cuskelly [2008] NSWSC 262 Luciano v Rosenblum (1985) 2 NSWLR 65 Marcuola-Bel Estate, Re; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Milillo v Konnecke [2009] NSWCA 109 Neale v Neale [2013] NSWSC 983 Nelson v Brennan [2002] NSWSC 979 O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of, (1978) 20 SASR 72 Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425 Schmidt v Watkins [2002] VSC 273 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse (No 2) (1994) 181 CLR 201 Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191 Vukic v Grbin [2006] NSWSC 41 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v France [2010] NSWSC 845 West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5 Category: Principal judgment Parties: Elizabeth Nagy (Plaintiff) Anthony Conrad Marton (Defendant) Representation: Counsel: Mr B Katekar (Plaintiff) Mr P Glissan (Defendant) Solicitors: Kanjian & Company (Plaintiff) Collins & Thompson (Defendant) File Number(s): 2013/162506

The Claim 1HIS HONOUR: These reasons relate to proceedings in which the Plaintiff, Elizabeth Nagy, seeks a family provision order pursuant to the Succession Act 2006 (NSW) ("the Act"), upon the basis that she is a person who was living in a de facto relationship with Leslie Louis George Marton ("the deceased"), at the time of his death. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. 2The proceedings were commenced by Summons filed on 27 May 2013, within the time prescribed by the Act (within 12 months of the deceased's death). 3The Defendant is Anthony Conrad Marton, the adopted son of the deceased. Because the Plaintiff is the executrix named in the Will of the deceased, to whom Probate was granted, and as the Defendant is the sole residuary beneficiary named in that Will, he is the proper person to represent the estate in the proceedings. 4At the commencement of the hearing, by consent, I made the following orders: "Pursuant to Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings. Any order subsequently entered or made in the proceedings binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been the Defendant in the proceedings." 5The hearing proceeded with the reading of the evidence filed. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of each of the parties then occurred. (There was one deponent, whose affidavit was relied upon by the Defendant, Vanessa Margaret McClure, who was unable to attend for cross-examination, but I granted leave to read her affidavit.) Neither of the solicitors, whose affidavit was read, was cross-examined. Finally, counsel made oral submissions in support of the written submissions, which are retained in the court file. The estimated duration of the hearing was two days, and the proceedings were concluded within that time. 6As I shall mention later in these reasons, the Defendant, in the written submissions, accepted that the Plaintiff was left without adequate provision for her proper maintenance and advancement in life. That being so, the only issue for the court's determination, initially, was what provision, if any, ought to be made out of the estate of the deceased for her, and the case focussed, almost exclusively, on that issue. Following cross-examination of the Plaintiff, the Defendant's counsel foreshadowed that he would submit that the court should not be satisfied that an order for provision ought to be made. Ultimately, he made this submission, but only faintly.

Formal Matters 7The following facts are uncontroversial. 8The deceased died on 13 August 2012. He was then aged 86 years, having been born, in Hungary, in July 1926. 9The deceased left a Will that he made on 1 March 2012, Probate in common form of which was granted, by this Court, to the Plaintiff on 25 March 2013. By that Will, the deceased provided for a legacy of $1,000 to Dr Kriston Pal of Eger, Hungary "in appreciation of his continuing care and maintenance of the Marton family grave in Eger, Hungary" and, after the payment of all debts, left the residue of his estate to the Defendant absolutely. 10The Plaintiff, but for being named as an executor, was not mentioned as a beneficiary in the Will and no provision was otherwise made for her out of the deceased's estate. It was accepted that there was no explanation provided by the deceased for making no provision for the Plaintiff. Accordingly, to the extent that it is relevant, it is impossible to reach a view as to what motivated him to make the Will in the terms that he did. 11I shall refer to some evidence given by each of the parties about what the deceased did, despite the terms of the Will, later in these reasons. 12The Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was attached to the Probate document, stated that the property owned solely by the deceased, at the date of his death, had an estimated (or known) gross value of $986,597. The deceased's actual estate was said to consist of real estate in Castlecrag, Sydney ("the Castlecrag property")($960,000), monies in bank ($23,497) and assorted furniture and furnishings ($3,100). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be mathematical errors.) 13No jointly held, or other, property, in which the deceased held an interest at the date of his death, was disclosed in the Inventory of Property. 14In fact, at the hearing, the evidence (Ex. D6) revealed that, at the date of his death, there was an amount of $13,803 in a bank account held in the name of the deceased. As well, there was another account, in the names of the deceased and the Defendant (Ex. D5), in which $19,274 was held at the date of death. 15Of the amount held in the joint account, it appears that the Plaintiff, who was a signatory to the account, transferred $10,000 to herself to pay debts funeral and testamentary expenses. The Plaintiff paid $9,297 to the Defendant when she closed the joint account. 16Although no liabilities were disclosed in the Inventory of Property, these debts, funeral and testamentary expenses, paid out of the estate, initially, amounted to $7,828. In fact, the evidence tendered at the hearing (Ex. P1) revealed that total expenses paid were $29,882, of which slightly more than $10,000 was paid for expenses such as the utilities on the Castlecrag property incurred since the death of the deceased. 17Although counsel for the Defendant suggested that the amount paid for the utilities, which were acknowledged by the Plaintiff to be incurred for her own use, should be considered a debt to the estate, repayable by the Plaintiff, I propose to treat that amount as provision made out of the estate of the deceased, to her, since his death. (In this regard, I note the evidence of the Plaintiff, not challenged in cross-examination, that the deceased would, during their relationship, pay these expenses.) 18At the commencement of the hearing, the parties agreed that the gross value of the actual estate of the deceased, at the date of the hearing, was $1,000,000. That value comprises only the estimated current gross value of the Castlecrag property. (The money in bank appears to have been expended on debts and other expenses.) 19The Plaintiff agrees that the Castlecrag property, which has three bedrooms, but which is in a state of disrepair, and, in any event, is too large for the Plaintiff to retain and maintain, must be sold. The parties agreed, in the event that the Castlecrag property is sold, the costs and expenses of sale are likely to be $32,000, made up of agent's commission, advertising costs, agent's costs and expenses of sale, and legal costs of sale. 20I raised with the parties the possibility that the Castlecrag property could sell for more, or for less, than the agreed estimated value and that one party, or the other, might be detrimentally affected by its actual sale price. I suggested that, since the Castlecrag property is to be sold, it might be prudent, in the event of her being successful, to provide the Plaintiff, absolutely, or otherwise, with an amount calculated as a percentage of the net proceeds of sale. 21After obtaining instructions, each of the parties stated, through her, and his, counsel, respectively, that any lump sum to be paid, whether absolutely or otherwise, be calculated by reference to a percentage of the actual net proceeds of sale. I shall follow this course. 22The Plaintiff does not seek to designate any property as notional estate of the deceased. 23In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate, of the deceased. 24The Plaintiff's solicitor, Mr K Kanjian, in an affidavit sworn on 13 March 2014, estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $65,344 (inclusive of GST and upon the basis of a two day hearing). 25Without objection, counsel for the Plaintiff informed me, from the bar Table, that the estimate of the Plaintiff's costs and disbursements, calculated on the ordinary basis, was $59,180. 26The Defendant's solicitor, Mr K Le Lievre, in an affidavit sworn 24 March 2014, estimated the costs and disbursements of the Defendant of the proceedings, including counsel's fees, calculated on the indemnity basis, to be $40,377 (inclusive of GST and upon the basis of a two day hearing). 27It follows that, if orders for costs are made, and if the costs estimates prove accurate (in total $99,557), if the legacy is paid to Dr Pal (and neither party suggested that it should not be) ($1,000), and if the Castlecrag property is sold and the costs and expenses of sale are paid ($32,000), the net value of the deceased's actual estate, available for distribution, will be about $867,443. 28The parties requested me to delay making any orders for costs of the proceedings as there may be matters relevant to the determination of that matter not able to be disclosed at the date of the hearing. 29The parties agreed that the only eligible person who has commenced proceedings under the Act is the Plaintiff. Of course, the Defendant, as a child of the deceased, is also an eligible person, but he has not commenced proceedings. However, as he is the sole residuary beneficiary named in the Will, the court will not disregard his interests. Later in these reasons, I shall refer to his claim as a competing claimant. 30The deceased's first wife, Marika Brownfield, from whom the deceased was divorced in 1954, is an eligible person. She has been given notice of the Plaintiff's claim and has stated, in writing, that she does not wish to make a claim for a family provision order. Although no notice of the court's power to disregard her interests, has been served on Ms Brownfield, in the manner and form prescribed by the regulations or rules of court, I am satisfied that service of any such notice is unnecessary in the circumstances of the case. I propose to disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made: s 61 of the Act. 31There are no other eligible persons within the meaning of the Act.

Other Background Facts 32The following facts are also not controversial. 33As stated, the deceased was born in Hungary. He migrated to Australia in 1950 with his then wife, Mrs Brownfield. They were divorced in 1954. There were no children of their marriage. 34The deceased married his second wife, Genevieve Marton, in 1955. She died in 1991. They adopted the Defendant in 1963, when he was about two weeks old. He was born in March 1963 and is currently aged 51 years. 35The deceased and Mrs Marton purchased the Castlecrag property in 1961. The Defendant lived with them until he completed school, then on and off, until her death, and thereafter, on occasions, with the deceased until 1994, when the Plaintiff moved into the Castlecrag property. 36During his second marriage, the deceased studied law. He commenced practice, as a solicitor, in about 1959. He continued to practice, successfully, as a solicitor for almost 30 years. 37Unfortunately, the deceased was a gambler. He is said to have squandered most of his money on gambling, with the result that, at his death, the Castlecrag property was virtually his only asset. The Defendant describes the deceased as "often short of ready cash". 38The Plaintiff is also Hungarian. With her family, she fled Hungary in 1956 and, with them, travelled to Sweden. 39In 1957, the Plaintiff married Joseph Kanti, and together, they came to Sydney. They were divorced in 1967. There were no children of this marriage. They had no property settlement at the time of their divorce, as according to the Plaintiff, "[w]e were refugees ... [and] had nothing". 40The Plaintiff married again in 1977, but that marriage also ended in divorce in 1989. She has not seen her second husband since then. There were no children of this marriage. There was an informal property settlement between them, which resulted in the Plaintiff receiving $100,000, and which she used to purchase her interest in an apartment in Budapest, Hungary, with her brother (to which reference will be made later in these reasons). 41I shall refer to details of the relationship of the Plaintiff and the deceased later in these reasons. 42The Defendant gives evidence of conversations with the deceased, in which the deceased said that the Castlecrag property should not be sold and that the Plaintiff should be permitted to continue to live there. The deceased had a conversation, in similar terms, with the Plaintiff, but it is not suggested that any secret trust was created. 43Subject to the evidence of the Plaintiff to which I shall later refer, the parties agreed that the Plaintiff requires alternative accommodation. They agreed, also, that the accommodation should be situated within a radius of 5 kilometres of North Shore Private Hospital. At the hearing, however, they disagreed about whether accommodation should be provided for the Plaintiff, and if it is, the nature of that accommodation and how it should be purchased.

Informal Document 44The Plaintiff gives evidence of events surrounding the creation of an informal document, which the deceased described as his Will. I set out her evidence in regards to the events that occurred: "60. At about midday on 2 August 2012, Les said to me: 'Looks like I won't receive anymore visits from Anthony. I need to add something to my will.' 61. I replied: 'What do you have in mind?' Les said: 'Please go to the computer and call up a copy of the will I made in March.' 62. I did as Les asked and when the copy of the will appeared on the screen, Les said: 'Can you make this change to the document. I want paragraph 3 to read: 'I direct my Executrix to sell my estate, pay all my debts and then share the Residue with my son Anthony Conrad Marton.' Is this okay for you?' 63. I replied: 'Yes, it's much better.' 64. Les asked me to print out a copy of the will as amended and made a call to the Gellerts to see whether they were available to witness the will. The Gellerts were not at home. 65. At about that time, one of Les' old friends, George Kacskovics, paid a visit to Les as was his habit. George who is an elderly gentleman used to visit Les at least once a week. 66. Les was... unable that afternoon to sign the will. He did not even have the strength to feed himself. During George's brief visit, he turned to George and said: 'This is my new will. Please sign this document as a witness.' 45The document referred to is in the following terms: "This is the last Will of me, Leslie Louis George MARTON of xx xxxx, Castlecrag 2068, in the State of New South Wales, retired attorney. 1. I appoint Elizabeth Nagy of xx xxxxx, Castlecrag in the said State to be the Executrix of my Will and Trustee of my estate, but if she does not outlive me or is unwilling to act or incapable of acting I appoint my son Anthony Conrad MARTON of xx xxxxx Waitara 2o77 in the State of New South Wales, Australia Post employee, to be the executor of my Will and Trustee of my estate. 2. I make the following gift: i.e. : i.e. the sum of One Thousand Dollars (A$ 1000.-) to Dr. Kriston Pal of Eger, Hungary, in appreciation of his continuing care and maintenance of the Marton family grave in Eger, Hungary, in which grave, after my demise and cremation the ashes of my body will also be interred. 3. I direct my Executrix to sell my estate, pay all my debts and then share the Residue with my son Anthony Conrad Marton. 4. It is my wish that my body be cremated and my ashes to be interred as mentioned in Clause 2 above." 46The document does not bear the signature of the deceased. 47At the commencement of the hearing, I raised the question whether this document was one to which s 8 of the Act might apply. Section 8 applies to a document that purports to state the testamentary intentions of a deceased person, and which has not been executed in accordance with Part 2.1 of the Act, but which forms the deceased person's will if the court is satisfied that the person intended it to form his or her will. I also asked whether the existence of the document had been disclosed, by the Plaintiff, in her application for Probate. 48The Plaintiff's counsel informed me, from the bar Table, without objection, that the document had been disclosed to the court at the time of the application for Probate of the deceased's duly executed Will, but that a decision had been made to not make an application under that section of the Act. 49It may be, as the Defendant's counsel submitted, that there was no reference, in the document, to how the residuary estate should be "share[d]" between the Plaintiff and the Defendant and, therefore, that the terms of the document were likely to be uncertain. There may have been other reasons upon which it is not necessary to speculate.

Credibility of Witnesses 50Overall, and subject to one matter in respect of each party, I consider that she, and he, gave her, and his, evidence truthfully. I am satisfied that, generally, there were not many facts seriously in dispute. Where there was disagreement, it seemed to be based on the individual's perception. Neither party made any submission to the contrary. 51I shall refer to the evidence that gave rise to the change of submissions made on behalf of the Defendant later in these reasons. The change, it would appear, arose because the Plaintiff now considers that her health is better and because she no longer feels the need for retirement village accommodation. 52In relation to the Plaintiff, the aspect that was troubling related to her not disclosing to Centrelink that she and the deceased were living in a de facto relationship. Her evidence, in this regard, was as follows: "Q. You said in paragraph 26 of your affidavit of 23 May 2013 that you lived continuously with Les as his de facto wife for a period of almost 18 years. A. That is correct. Q. During most of that time or during certainly the major portion of that time you were each receiving pensions, correct? A. Yes. I am a bit later than him. Q. And did you disclose to Centrelink that you were Les's de facto wife? A. No. Q. Why not? A. Because he didn't either. Q. Well that was dishonest, wasn't it, not to tell Centrelink that you were in a de facto relationship with a husband? A. No. I don't know. Q. You don't know? A. No. Q. It would have resulted in a lower pension, wouldn't it? You knew that? A. Probably." 53Whilst her conduct does not paint the Plaintiff in a particularly favourable light, it is to be noted that the Social Security Act 1991 (Cth) does not disclose an intention that a person in the position of the Plaintiff would lose her, or his, right to pursue relief under the Act as a consequence of any statement made to Centrelink. Nor does the Social Security Act disclose any intention that penalties over and beyond those imposed by that Act for false statements (when duly prosecuted and proven) should apply. 54In any event, I consider what I wrote, in Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137, at [28], relevant: "It is also clear that the Plaintiff told Centrelink, at different times, that he was not in a de facto relationship. (Statements to a government authority, apparently inconsistent with a party's case, may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances: Bar-Mordecai v Hillston [2004] NSWCA 65 (at [118]); Hayes v Marquis [2008] NSWCA 10 (at [99]))." 55However, as was the case in Thompson v The Public Trustee of New South Wales, the usual situation in which the failure to disclose the nature of a relationship to Centrelink is raised is where there is a dispute about the existence of the relationship between a Plaintiff and a deceased person: see, also, Drury v Smith [2012] NSWSC 1067, at [38]; Nelson v Brennan [2002] NSWSC 979, per McLaughlin M, at [26]-[27]; Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [113]. 56Here, there is no dispute about the relationship of the Plaintiff and the deceased. The Defendant accepted that there was, in fact, a de facto relationship and the questions regarding non-disclosure to Centrelink were, it seems, only asked in order to cast doubt on the credit of the Plaintiff. 57In relation to the Defendant, the aspect of his evidence that was troubling, related to his non-disclosure of all of his superannuation. He gave the following evidence in this regard: "Q. You have about $35,000 in your superannuation, Australia Post? A. I am not sure but it would be thereabouts. Q. You have that in your affidavit? A. Yes. Q. That is for your current stretch of employment at Australia Post? A. Yes. Q. How long have you been working at Australia Post in your current stretch of employment? A. I think it is roughly nine years. Q. You worked for Australia Post some time ago, before? A. Yes. Q. For some many years? A. Yes. Q. What is the period? A. It was 1997 to 2000. Q. 1997 to 2000? A. 1987 to 2000, sorry, '87 to 2000. ... Q. That is your superannuation you built up in your current employment with Australia Post, is that right? A. Yes. Q. But it does not include the superannuation you built up when you were previously employed at Australia Post, does it? A. No, it doesn't. Q. But there is superannuation from that period of employment? A. Yes. Q. How much is it worth? A. I don't know. Q. And then when you were marina manager for Halverson [sic] Boats you built up superannuation in that position of employment, didn't you? A. Yes. Q. And how much is that worth? A. I don't know. Q. Have you tried to find out? A. No. Not at this present stage, no. Q. Because when you swore this affidavit, if you go to page 2, when you swore this affidavit in paragraph 4 you have referred to your Holden sedan? A. Yes. Q. And you have referred to your Commonwealth Bank of Australia statements? A. Yes. Q. And then you have referred to your superannuation statement? A. Yes. Q. What you were trying to do there was to indicate to His Honour what your assets were? A. Yes. Q. That's right? A. Yes. Q. But you did not include in that your other items of superannuation, did you? A. No. Q. Why not? A. Because it is all a bit of a mess at the moment and I consider it as lost superannuation that I need to chase up. Q. So do you say to His Honour now that you have some superannuation somewhere but you don't know where it is? A. That's correct. Q. But you have not asked Australia Post where it is? A. No because it is not with them. All the other funds that I have were with several different superannuation companies because everyone had their own systems in place and I just went with whoever they were banking their super with. Q. You went with the superannuation fund that was organised by your employer - A. Yes. Q. - didn't you? A. Yes. Q. That superannuation fund was organised by Australia Post, wasn't it? A. That's correct. Q. And do you say to His Honour now that you have not asked Australia Post who that superannuation fund is, is that right? A. That I have not asked? Q. You have not asked? A. No, I have not. Q. And you have not asked Halvorsen Boats who the superannuation fund is that it organised for you? A. Well, I have some recollection of the funds because I from time to time get correspondence but because I have not had time to chase any of it up I just put all the letters in a box and one day I am going to go through it and consolidate the whole lot. Q. Did you try to hide it from His Honour - A. No. Q. - how much superannuation you had? A. No, otherwise I would not be answering honestly now. Q. Why didn't you say in your affidavit that there are some other superannuation funds available to you? A. No particular reason. Q. You wanted to indicate to His Honour that you did not have those assets available, didn't you? A. Can you repeat the question please? Q. You wanted to give His Honour the impression that all you had was your second hand Commodore, what little you had in your bank account and $35,000 in superannuation. That is what you tried to indicate to His Honour. That is right, isn't it? A. No." 58It is extremely difficult to accept the truth of the last answer. There appears to have been no reason for the Defendant to not make enquiries as to the other amounts of superannuation to which he would become entitled. 59As stated, Ms McClure swore an affidavit that was read by the Defendant in the proceedings, with leave, as she was not available for cross-examination. A medical report was tendered (Ex. D1), without objection, which revealed that "she suffers from Epilepsy grand mal which is frequent, difficult to control & unpredictable & she also has a resultant fragile mental state and is unfit for any court appearance from 24/4/2014". 60Ms McClure is a person with whom the Defendant currently cohabits, and has been cohabiting from about 2006. Both deposed to the fact that they were not in a current de facto relationship. 61Having heard the Defendant's evidence and observed him give the evidence on that topic, some of which evidence was given in response to questions from the Bench, I am satisfied that he and she do not currently live in a de facto relationship. However, it is important to note that they do share expenses such as rent and electricity, and, on occasions, food. They also socialise together on occasions, but not always. 62The Defendant's solicitors provided a number of documents to the Plaintiff's solicitors, a copy of which was tendered (Ex. D3). These related to investigations that he had made of various retirement villages in the area that had been suggested by the Plaintiff and revealed that the cost of purchasing a one-bedroom unit ranged between $210,000 and about $410,000.

The Statutory Scheme - The Act 63Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application. 64The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 65The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 66Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(b) of the Act. There is no dispute that she is a person with whom the deceased was living in a de facto relationship at the time of his death. 67Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 68Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an]... order and the nature of any... order.' Section 60(2) provides a detailed body of considerations for the task in s 59." 69Basten JA, at [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court 'shall not make an order... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the Court 'may... make a family provision order... if the Court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy." 70Barrett JA, at [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person 'either during the person's lifetime or out of the person's estate' was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act." 71Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 72In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 73It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40]. 74Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application. 75"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 76Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 77The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 78In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 79In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 80In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 81Master Macready (as his Honour then was), in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep), said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 82In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 83In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 84In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import." 85The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77], which seems to invite more subjective criteria. 86These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 87Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 88In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 89In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here... The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 90Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied..." 91In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 92His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 93Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70]. 94Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 95In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred." 96In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 97"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 98As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 99In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 100The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 101However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29. The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41. As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 102In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]." 103Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65. This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79. First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was 'satisfied' in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. 80. Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81. Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94. As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 104I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2012] NSWSC 1380. 105(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew.) 106Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order). Also see, Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner, at [126]. 107Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 108It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 109It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life". 110In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'". 111The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 112It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 113There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984 (NSW), which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 114In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 115Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 116A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 117Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 118This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 119And by the comments of Callinan and Heydon JJ, in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 120As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 121Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court. 122The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 123Any family provision order under the Act takes effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.) 124Thus, the practical effect of an order is to alter the provisions of a deceased person's will or the distribution of an estate according to the intestacy provisions of the Act. 125Section 66 of the Act sets out the consequential and ancillary orders that may be made. 126Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit. 127Section 100 of the Act provides, in subsection (2) that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

Other Applicable Legal Principles - Substantive Application 128Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. 129Bryson J noted, in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 130In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 131In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the court did not have a mandate to rework a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 132Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute. 133White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 134Gleeson CJ observed, in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 135Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 136As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 137How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36]. 138In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 139The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164, at [21]. 140Where the court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 141All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that, if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89]. 142The size of the estate is a significant consideration in determining an application for provision. 143In relation to a claim for a family provision order by a person living in a de facto relationship with the deceased at the date of his, or her, death, the following principles are also relevant. 144In Luciano v Rosenblum (1985) 2 NSWLR 65, at 69-70, Powell J (as his Honour then was), wrote: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies." 145That "broad general rule" was approved, by the Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99. It has also been held that the principle is applicable to the position of a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182, at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142]-[144]. 146The three elements identified by Powell J are not necessarily mutually independent. The court is not to approach the assessment of what is proper for an applicant by attempting precisely to replicate the way of life that the deceased and his, or her, spouse planned to have had he, or she, survived. 147In Bladwell v Davis [2004] NSWCA 170, Bryson JA, who had reviewed the authorities stated, at [19]: "In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." 148Ipp JA added, at [2]: "I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." 149Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there also remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]; West v France [2010] NSWSC 845, at [66]. 150Ward J (as her Honour then was) referred to many of the authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and 'regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts' (para 19)". 151Concern as to the capacity of the applicant to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. 152The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the adequate provision of the person seeking provision. As Gleeson CJ observed in Vigolo, at [199], the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. 153Not infrequently, the jurisdiction of the court to interfere with the deceased's testamentary intentions comes to be exercised upon the application of a spouse, or person of advanced age who was living in a de facto relationship with the deceased at the time of his death, and in circumstances where tensions arise between other family members as to the real and probable beneficiaries in the event that an order is made and if the applicant's remaining number of years prove to be relatively short. Whilst such tensions sometimes provide at least part of the backdrop and reasons for the respective stances taken in the litigation, the task of the court is, no more and no less, than to exercise its jurisdiction in accordance with the Act (Hertzberg v Hertzberg [2003] NSWCA 311, per Einstein AJA, at [44]). 154This tension often presents a fundamental division on the question whether adequate provision requires an interest less than an absolute interest, namely a life interest, or "Crisp order", in the property of the deceased. 155What is described in the cases as a "Crisp order" is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep), except in part, in L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) at p 13580, at [9433]). Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a "Crisp order" confers a "portable life interest": Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep), cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109, at [47]-[48]. 156In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act". 157Of course, the Defendant is not an applicant for provision, so principles that apply where a child is one are not entirely apposite and do not have to be stated. Furthermore, he does not have to prove an entitlement to the provision or otherwise justify such provision. 158I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 159In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 160Naturally, making comparisons of the quantum of orders in different cases provides little, if any assistance in the determination of this case.

Further Additional Facts 161I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 162There is no definition of "family" in the Act. Its popular meaning is not fixed and, undoubtedly, over time, has changed. It is not a technical term, or term of art, with a specific meaning. It is a word in ordinary usage, with a flexible meaning. Generally, it is a word that may be used in a number of different senses, some wider, some narrower. 163In this sub-section, I consider that the word is used in the narrower sense, because of the use of the word "other" before the word "relationship". The language of the sub-section plainly indicates a distinction. It follows that in this sub-section, "family ... relationship" depicts a legal relationship (of blood, by legal ceremony of marriage, by legal adoption) or a de facto relationship. It may also include persons where the link is "step-", or where the link is "in-law" or by marriage. 164In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed: "Granted that 'family' is not limited to cases of a strict legal familial nexus... It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man." 165As stated, the Plaintiff was living with the deceased in a de facto relationship, at the time of his death. The relationship was exclusive and it is clear that they were committed to each other. 166They had met in 1967 when the deceased had acted for the Plaintiff's first husband in matrimonial proceedings. They met again, in 1974 and a friendship developed between them, which friendship was, then, a platonic one. 167Following the breakdown of her second marriage, her friendship with the deceased continued and, following the death of his second wife, the nature of their relationship changed to a romantic one. In May 1994, the Plaintiff moved into the Castlecrag property and remained living with the deceased until his death in 2012. Accordingly, their de facto relationship was of almost 18 years duration. 168There is no suggestion that the relationship was not a close and loving one, or that the Plaintiff was not, to all intents and purposes, the wife of the deceased. In any event, I am satisfied that the Plaintiff was a loving de facto partner of the deceased and that their relationship was a long standing, close, and loving one. The fact that there was no caring for children is unimportant, in this case, in view of the age of each of the deceased and the Plaintiff when they met and the duration of the relationship. Her role in looking after the deceased when he became ill, to which I shall later refer, suggests that she ought be treated as a spouse of the deceased. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 169There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased. 170This matter may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the sole residuary beneficiary. 171As the Plaintiff was living in a de facto relationship with the deceased at the time of his death, an obligation or responsibility, to make adequate provision for her proper maintenance or advancement in life is recognised: see, for example, Forsyth v Sinclair [2010] VSCA 147, per Neave JA, at [89]. The obligation, or responsibility, naturally arises from the de facto relationship. 172As Harper J, in Schmidt v Watkins [2002] VSC 273, at [22], concluded (quoting Statute Law Amendment Relationships Act 2001 (Vic) s 1(2)): "Generally speaking ... a 'domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner' would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility." 173I have earlier referred to the nature and extent of obligations or responsibilities owed by the deceased person to an applicant in the position of the Plaintiff. 174In relation owed to the Defendant, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child (whether natural or adopted). In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 175 I have earlier identified the nature and extent of the deceased's estate and the liabilities or charges to which the estate is subject. It is an estate with a moderate, but not large, value. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 176The Plaintiff estimates the value of her financial resources to be $174,790, comprising: (a) One half share in an apartment in Budapest, Hungary, owned jointly with her brother, Laszlo Nagy $75,000 (b) Honda Jazz motor vehicle $11,000 (c) Commonwealth Bank Deposit $ 7,470 (d) Erste Bank Deposit, in Budapest $81,250

177In relation to the apartment in Budapest, the Plaintiff gives evidence that the apartment is currently unoccupied and does not earn rental income. She uses the apartment when she visits friends and relatives in Hungary. She says that her brother. Laszlo, resides in Vienna and that she has made an agreement, with him, to the effect that she pays, and will continue to pay, "all maintenance and upkeep expenses associated with the apartment... [including] rates, taxes, insurance premiums and utility charges for gas and electricity". She estimates those expenses to total approximately $8,475 per year. 178The Plaintiff says that the money in the Erste Bank includes part of the proceeds of sale of an apartment she owned in Potts Point. That apartment was sold, in 1996, two years after she moved in with the deceased. She says that she accesses the money to maintain the Budapest apartment and to cover her living and travel expenses when she is in Hungary. 179The Plaintiff also gives evidence that the Honda Jazz motor vehicle was purchased for $11,000 with money loaned from a friend, Andrew Selmeczki. She says that that money was loaned "on the basis that [she would] pay it back to him when [she was] able". 180While, in her primary affidavit, the Plaintiff gave evidence that, other than the loan to Mr Selmeczki, she had "no other debts or liabilities", she clarified that evidence in a later affidavit sworn on 11 April 2014. In the later affidavit, she says that, after discussing her financial situation with her brother, he sent her $20,000 "deposited by direct bank transfer into [her] account with the Commonwealth Bank". The money was deposited on 16 April 2013 and withdrawn on 22 April 2012. 181She says that she used $11,000 of that money to repay the loan to Mr Selmeczki. There is a letter from Mr Selmeczki in evidence confirming that she "repaid the ... amount [in] full in cash ... on 25 June 2013". The Plaintiff says that the balance of the money is retained by her, in cash, as "money on hand to pay for costs and expenses as they [arise]". 182However, she maintains that she has a debt to her brother, which will be required to be repaid. This is confirmed in a copy of an email from him disclosing that the $20,000 sent to the Plaintiff "was strictly and definitely a loan ... to help her in her difficulties". 183The Plaintiff is not currently employed. At her age, and bearing in mind she retired from work nearly 20 years ago, I am satisfied that she does not have an earning capacity. 184She discloses her income as comprising an old age pension of approximately $808 per fortnight together with "negligible interest earned on [her] bank deposits in Australia and Hungary". She says that she does not "receive income from any other source including from [her] family overseas". 185The monthly expenses that were disclosed by the Plaintiff total $1,640 and comprise: (a) HCF membership $149 (b) Motor vehicle expenses, including registration, insurance and tolls $ 84 (c) Petrol and oil $ 70 (d) Castlecrag property expenses, including electricity ($430), gas ($52), telephone and internet charges ($150), water rates ($50), council rates ($70), insurance ($35) and garden and general maintenance ($55) $842 (e) Food, clothing and other necessities $500

186The Plaintiff says that her "budget is extremely tight" and that she is, therefore, unable to pay for major repairs required to be made to the Castlecrag property. She describes the property to be "in a somewhat dilapidated condition", saying that it "requires repainting and replacement or renewal of electrical wiring, plumbing conduits and connections as well as kitchen and bathroom fittings and fixtures". 187In her first affidavit, the Plaintiff set out her needs as follows: "The Castlecrag residence has three bedrooms. As earlier deposed to, it is in a state of considerable disrepair with no money having been spent on it since my efforts in 1994. The residence is too large for me and it is also beyond my financial capacity to retain and maintain given my reliance on the old age pension as my only source of income. It is also beyond my physical capacity to maintain in view of my age and the fragile state of my health. I would like to live in a smaller self-contained unit with domestic and nursing staff on hand in case I need assistance as I grow older. I have made enquiries of various retirement villages about accommodation of this type. For example, Northbridge Gardens Retirement Village not far from the Castlecrag residence recently had for sale a one-bedroom single level apartment known as 7/21 Eastern Valley Way, Northbridge. This apartment would have been very suitable for my needs although it did not come with the domestic and nursing services I am likely to require as I age. At any rate, the apartment sold earlier this month for $325,000 through McGrath Estate Agents. Annexed to this affidavit and marked 'E' is a copy of the brochure advertising the property for sale. The apartment has an area of approximately 76 sqm but outgoings are quoted in the brochure at $6,628 per annum or $552 per month determined on an annual basis as follows: Council rates $1,030 Water rates $626 Strata levies $4,972" 188The Plaintiff steadfastly maintained, in her oral evidence, that she did not wish to move into retirement accommodation and wished, rather, to live independently. 189However, during her oral evidence, she also accepted that she had told one of her doctors that her intention was to migrate permanently to Hungary. In re-examination, she said that she did not say that she was certainly going to move there permanently but that she was thinking about it, as her brother has been "very, very ill for the last seven months. He had double spinal surgery and he is unable able to move both of his arms". She then said, in answer to a question from her counsel: "Q. Do you have a present intention to move to Hungary permanently? A. That is a very difficult question. I don't know." 190In answer to questions from the Bench, the Plaintiff gave the following evidence: "Q. As I understand your evidence, you don't quite know what you want to do in the future, is that right? A. That is right, sir. Q. And the alternatives that you have told me about are, in no particular order of priority, the purchase of a one bedroom property? A. Yes. Q. Renting a one bedroom property? A. Yes. Q. In Sydney? A. Yes, I have been living here for 56 years. Q. Going to live in Hungary temporarily ...? A. 90 per cent is, that is the case, sir. Q. Where would you live in Hungary if you went there temporarily? A. I have a property which I share with my brother. Q. I thought he lived in Vienna? A. Yes. Q. So no one is occupying the Hungary property and you would live there? A. Yes. Q. And if you go to live in Hungary permanently, where would you live? A. There. Q. Have you talked to your brother about either of the last two alternatives, that is, going to live in Hungary temporarily or permanently? A. I have. Q. And ... would he require you to pay any rent or occupation fee? A. I pay everything in Hungary. Q. You pay? A. I do, there is an agreement. Q. And as long as you continue to do that, you would be able to live in the unit occupation or rent free? A. I don't understand. Q. Would you have to pay him any amount as owner? A. I don't pay him. Q. I understand that, but if you went to live there either temporarily or permanently, would you have to pay him anything for occupying the Hungary home unit? A. I do, I pay all the out-goings there, that is an agreement. Q. Would you have to pay him anything in addition to that? A. No, sorry. Q. Now, please tell me if you cannot answer this question, of the four alternatives that you told me about, firstly, are there any more alternatives that you are considering A. No. ... Q. Can you give me an order of priority if that is possible, tell me... [if it is] not possible? A. May be it is not possible, your Honour." 191The alternative that the Plaintiff ultimately accepts will necessarily affect an assessment of her future needs. There are also several considerations that will affect the alternative to be accepted. These considerations include the health and welfare of her brother in Europe, who is currently ill, and the fact that the Plaintiff considers Australia her "home" and has lived in Sydney for over 56 years. 192The Defendant's property was disclosed, in August 2013, as totalling $4,529, comprising: Money held in Commonwealth Bank account $ 29 Holden Commodore motor vehicle $4,500

193He maintained that his furniture and personal effects were of "nominal value only" but that he did have some possessions in the Castlecrag property. 194In March 2014, the Defendant deposed that the money he held in the Commonwealth Bank totalled $627. He says that he works as a Postal Delivery Officer Driver and Sorter for Australia Post and that his gross monthly income, although disclosed, in August 2013, to be $2,476 (with his net income, at that time, being $2,263), has now increased. As at November 2013, his "monthly income [had] increased, due to the availability of relief work and overtime". As at March 2014, his gross monthly income is $2,888. 195I accept that the Defendant has an earning capacity. 196The Defendant's monthly expenditure was set out as follows: Rent (of which he pays half) $1,032 Utilities, including electricity (of which he pays half), telephone and maintenance $ 133 Transport costs, including fuel, registration, insurance and other running expenses $ 400 Living costs, including food (of which he pays half) and clothing $ 443 Personal insurance $ 9 Total $ 2,017

197It appears that, currently, he has a small surplus of monthly income over monthly expenditure. 198The Defendant refers to having to pay maintenance for his son. His evidence, as at August 2013, was that the payment of maintenance was "in arrears", although he does not state what is payable. However, his son has now started an apprenticeship and will, in any event, turn 18 years of age later this year. 199I have earlier referred to his superannuation, which, it is clear, has not been fully disclosed. 200Ms McClure, with whom the Defendant cohabits, although not in a de facto relationship, deposed that her personal assets include money in bank ($2,655 as at 21 February 2014) and furniture and personal effects "of nominal value only". She receives approximately $951 per fortnight in the form of a Disability Support Pension. She pays annual health insurance premiums of $1,915. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person 201The Plaintiff is not cohabiting with any other person. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 202 The Plaintiff has suffered from a number of medical conditions. These conditions are set out in a medical report dated 25 February 2013, and described as "multiple health problems". Most recently, in 2010, she suffered large cell carcinoma of the lung and subsequently had a lobectomy (the surgical removal of one part of the lung). 203There is no evidence of the effect of any of these medical conditions on the life expectancy of the Plaintiff. 204In any event, the Plaintiff says, and I accept, that she is much better now and that her health is no longer "fragile". This seems to be supported by medical reports, tendered by the Defendant, which followed the surgery that she had. For example, in a report dated 27 April 2011, Dr Guminski, who was her treating doctor for the lung cancer, described her as being in "clinical remission". 205In a report dated 25 January 2012, from Dr Peter Brady, a cardiothoracic surgeon, the Plaintiff is described as looking well and as having a "good performance status". Although she saw him again, as required, 18 months later, there is no report in evidence. I infer that her condition remains the same as it was when she saw Dr Brady. 206Despite her improvements in health, the Plaintiff continues to smoke. She has been advised to cease smoking, first in 2001, and subsequently. In a Patient Health Summary, dated March 2014 (which summary formed part of Ex. D4), the Plaintiff was recorded as smoking 15 cigarettes per day. In her oral evidence, the Plaintiff said that she smokes between 5 and 10 cigarettes per day. (g) the age of the applicant when the application is being considered 207The Plaintiff was born in July 1938 and is almost 76 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 208The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498: "One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided." 209I am satisfied that the Plaintiff made a meaningful contribution to the deceased's welfare by virtue of their long and loving relationship. From March 2012 until his death, five months later, the Plaintiff was the deceased's sole carer. He did not wish to go to hospital and she abided this wish by looking after him at the Castlecrag property. 210During their relationship, whilst the deceased and the Plaintiff kept separate bank accounts (although each was a signatory to the other's account), the deceased would pay the rates, taxes, insurance premiums and utility expenses on the Castlecrag property, whilst the Plaintiff paid for food, clothing and other necessities of the household. 211The Plaintiff paid the costs of maintaining and repairing the car, and its running costs, that she owned, which the deceased drove, because he did not own a car. 212On occasions, the deceased would borrow sums of money from the Plaintiff, varying from several hundred dollars to $5,000. Generally, he would repay the amounts borrowed. 213When the Plaintiff moved into the Castlecrag property, it was in some disrepair. Between May and November 1994, the Plaintiff spent at least $25,000 and what she describes as "countless hours" renovating and upgrading the residence. The work she did included stripping wallpaper, repairing the walls, polishing floorboards, purchasing new carpets, light fittings and furniture and furnishings and constructing a new pergola. Otherwise, it is accepted that she did not make any direct contribution, financial, or otherwise, to its acquisition. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 214There does not appear to have been any direct provision made for the Plaintiff by the deceased, during his lifetime, or out of his estate. Of course, she lived in the Castlecrag property, and has continued to do so, rent and occupation fee free, throughout their relationship and since the deceased's death. During his lifetime, of course, this flowed from their relationship. Since his death, it appears to have been what the deceased wanted, as stated by him to the Defendant. 215I have already referred to the payments made by the Plaintiff before and after the death of the deceased in relation to the Castlecrag property. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 216 I have referred to the informal document for which the deceased gave instructions, but which he never executed, a short time before his death. This document, which was created as a result of the deceased's instructions, suggests that he appreciated that he owed a significant obligation to make provision for the Plaintiff out of his estate. 217The Defendant's counsel is correct in submitting that there is no reference in the document to the precise share of the residuary estate that each of the Plaintiff and the Defendant should receive. However, the Act does not prevent the court making a family provision order simply to enable effect to be given to the intention, or promise, of the deceased to provide for someone. Such a statement of intention may be a relevant consideration. 218For example, in Forsyth v Sinclair, Neave JA, with whom Habersberger J agreed, held, at [98]: "Whilst Part IV of the Act does not give the Court power to make an order simply to give effect to the intention or promise of a deceased person to provide for someone else, such a statement of intention is not an irrelevant consideration... A statement made by the deceased about the provision he or she has made or intends to make for the applicant may be taken into account under s 91(4)(p)." 219In Vukic v Grbin [2006] NSWSC 41, Brereton J, at [38], did not limit the relevance of such promises to cases where a claimant has relied on them to his detriment. He stated: "Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant... This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation." 220This is not just a case of a general promise to the Plaintiff to make financial provision, not acted upon by the deceased or otherwise corroborated. There is a document, which bears the signature of a witness, and a conversation, not challenged, in which the deceased referred to the document as his "Will". (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 221 I have referred to the sharing of expenditure, which, in part, suggests some maintenance of the Plaintiff by the deceased. However, she contributed also to maintaining the deceased. (l) whether any other person is liable to support the applicant 222Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support her. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 223An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 224I am satisfied that there is nothing in the Plaintiff's conduct not already referred to, before, or after, the death of the deceased, which is relevant. However, I note that she did not seek to assert an entitlement to remain in the Castlecrag property, which had been her home for the whole of her relationship with the deceased. Her reason for not doing so is her acceptance that it is too big and too difficult to maintain. 225There is certainly no evidence of any adverse conduct that should be taken into account. (n) the conduct of any other person before and after the date of the death of the deceased person 226In relation to the deceased, I am satisfied that there is nothing in the conduct of the Defendant that is relevant. He had a close relationship with the deceased although he admits that the deceased had "a dominant personality" and that he was "equally headstrong", which "[I]nevitably led to arguments between us from time to time". 227He does not dispute that, about six weeks or so before the death of the deceased, "there had been an altercation of some kind" with him. Whilst he says that he does not recollect what was said (as alleged by the Plaintiff), he acknowledges that, if the words asserted were said, they were inappropriate, and he apologises for any offence caused. 228The Defendant also gives evidence that apart from the last six weeks of his life, he was in regular social contact with the deceased, "usually on Wednesdays and occasionally on weekends". He states that he "always" telephoned him once or twice a week. 229I do not consider that the events referred to by the Plaintiff involving the deceased and the Defendant gives rise to any relevant conduct. (o) any relevant Aboriginal or Torres Strait Islander customary law 230This is not relevant. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 231There is no other matter that I consider relevant.

Determination 232Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that the Plaintiff was living in a de facto relationship with the deceased at the time of his death. Accordingly, she is an eligible person under s 57(1)(b) of the Act. 233There is also no dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act. 234Having established eligibility and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made by the Will of the deceased. 235Having been left with no provision out of the estate of the deceased does not, automatically, lead to a finding of the provision being inadequate: Allen v Manchester [1922] NZLR 218, at 221-222. 236The Defendant faintly submitted that adequate provision had been made for the Plaintiff. However, in the circumstances of this case, taking into account all the matters, including such matters as the length, nature and quality of the relationship between the deceased and the Plaintiff; her character and conduct; circumstances relating to what once was called the "station in life" of the parties and the expectations to which that has given rise, or in other words, reciprocal claims and duties based on how the parties lived and might reasonably have expected to live in the future; her present and reasonably anticipated future needs; her own capacity and resources for meeting those needs; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the Will; the nature and relative strengths of the competing claim of testamentary recognition; and any contributions of the Plaintiff to the property or to the welfare of the deceased, I am satisfied for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the Plaintiff. 237It is also clear that the Plaintiff has some "needs". As stated above, "need", in the context of the Act, is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. 238Age and state of health are factors to which, under the Act, the court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. She has no reasonable prospect of improving her income and, in the future, she may face the prospect of increasing costs of living associated with ageing and ill health. 239(I should mention that actuarial tables produced by counsel for the Defendant (Ex. D2) demonstrate that the Plaintiff's life expectancy is in the order of a further 13 years (although he suggested that the court should not regard it as such because of her previous health problems). 240While her health currently appears to be better than it has been, common sense dictates that, as she advances in years, her health and, possibly, her mobility, are likely to decline. 241Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. As I reminded counsel for the Defendant, the word "proper" in the collocation of words in the section of the Act is of considerable importance. 242Principally, and upon the sale of the Castlecrag property, the Plaintiff has a need for accommodation. I accept the Plaintiff's evidence that she does not wish to move into a retirement village at the present time. I also accept that she may go back to Hungary, as she did during the lifetime of the deceased, but return to Sydney. In this regard, considerations include the health and welfare of her brother in Vienna, who is currently ill, the fact that she considers Australia her "home", and the fact that she has lived in Sydney for over 50 years. 243Thus, I accept the Plaintiff's evidence regarding the alternatives available, which are: (i) to remain in Sydney and purchase one-bedroom accommodation within five kilometres of Royal North Shore Hospital; (ii) to remain in Sydney and rent one-bedroom accommodation within five kilometres of Royal North Shore Hospital; (iii) to visit Hungary, in which case she would reside, whilst there, in the Budapest apartment, rent and occupation fee free (but would continue to pay the outgoings as she is currently doing), but return to Sydney; and (iv) to move to Hungary permanently, in which case she would reside in the Budapest apartment, rent and occupation fee free (but would continue to pay the outgoings as she is currently doing). 244The Defendant, initially, submitted that "provision for her future accommodation near North Shore Private Hospital [should] be made on the basis that the Plaintiff have a life interest, or a limited interest, in such accommodation, the Defendant holding it on trust for her for the remainder of her life". 245With respect, I disagree. It is clear that the relationship of the Plaintiff and the Defendant is not a close one and, after a relationship between the Plaintiff and the deceased of nearly 18 years, I do not consider that it would be "proper" to require the Plaintiff to be beholden to the Defendant. 246However, in light of the alternatives proposed, I do not consider that the Plaintiff should receive the whole of the amount required to purchase such accommodation absolutely. This would impact too greatly, in my view, on the deceased's testamentary freedom and, in the event that she returns to Hungary permanently, would provide more than is adequate or proper. 247I turn then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the court. The order should be no more than is necessary to make adequate provision for her proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of his property as he did in his Will, as well as the position of the chosen object of the testamentary bounty of the deceased, namely the Defendant. 248In my view, bearing in mind the alternatives that are available to the Plaintiff, who, not unnaturally or unreasonably, in my view, has not yet determined which is the most appropriate, the provision to be made should provide her with sufficient flexibility to meet her long term needs. It is clear that she has limited financial resources available to her, and her financial situation is unlikely to improve. 249The provision, in my view, which she should receive absolutely, should equate to a lump sum calculated as 35 per cent of the net proceeds of sale of the Castlecrag property. 250To the extent that any additional amount is required to obtain alternate accommodation (as to which, see later), that amount should be provided out of the net proceeds of the sale of the Castlecrag property by way of loan. 251The amount received absolutely should not include the amount of about $10,000 that the Defendant claims should be repaid by the Plaintiff to the estate. The Plaintiff should, in addition, retain the benefit of the payments made out of the estate to which that amount relates. (Although this could be achieved by making an order that she receives an additional $10,000, from the net proceeds of sale, which would be repaid to the Defendant, counsel for the Defendant accepted that this could be dealt with a more practical way.) 252If the Plaintiff wishes to remain living in Sydney, whether permanently, or at different times, the Plaintiff should choose a one-bedroom home unit which best suits her needs. The property to be purchased should be registered in the name of the Plaintiff solely. The maximum price of the property, together with costs and associated expenses of purchase, for the purposes of calculating the amount to be loaned to the Plaintiff, should be no more than $400,000. (The only evidence of the purchase price of a one-bedroom unit was $325,000 about 12 months ago. I have allowed for some increase in the value in the last 12 months.) Of course, if she wishes to purchase a more expensive property, she may do so, adding any additional amount required from her own resources. 253The purchase price of the property should be paid, principally, out of the amount referred to above that is to be paid to the Plaintiff absolutely. No less than 26 per cent of the net proceeds of sale of the Castlecrag property, to be paid to the Plaintiff, should be used. To the extent that the amount is insufficient, an amount equating to the balance required, but no more than 20 per cent of the net proceeds of sale of the Castlecrag property, should be provided to the Plaintiff by way of loan, which loan should be interest free, but secured by registered mortgage on the property purchased, or by way of other security to the satisfaction of the Defendant, or as ordered by the court. The amount borrowed should be repaid no later than 4 months after the Plaintiff's death, and, if not so paid, then interest at the rate prescribed by the Probate and Administration Act on unpaid legacies should be paid, calculated from 4 months from the death of the deceased, until it is repaid. In addition, the loan should be repaid in the event that the Plaintiff does not return to Sydney to reside in the property purchased for a period of 18 months. 254In the event that the Plaintiff needs to move from the property purchased (for example, should she wish to later move to retirement accommodation), the amount borrowed from the estate, as a loan, to the extent that it is not required, in whole or in part, to enable the purchase of the substitute accommodation, should be repaid. If it is required, it should be secured against the substitute accommodation to the satisfaction of the Defendant or as ordered by the court. (In this regard, the amount to which the Plaintiff is entitled from the proceeds of sale of the property originally purchased should be used, first, to pay for the substitute accommodation.) 255(In stating the above, the Plaintiff may retain 9 per cent of the proceeds of sale of the Castlecrag property that she receives absolutely, to provide for exigencies of life, which will include the shortfall of income over outgoings once the Castlecrag property is sold (which was estimated to be about $4,080 per annum.) 256By way of example, and using the estimated net value of the estate referred to earlier in these reasons ($867,443), and the percentages referred to above, the lump sum that the Plaintiff should receive absolutely, will be about $303,600 (35%), of which she will be required to use no less than about $225,500 (about 26%) as part of the purchase price of the home unit. The amount to be the subject of the loan will be about $174,500 (about 20% of the net proceeds of sale of the Castlecrag property). 257In this way, the loan ratio will be less than 50 per cent on a property with a purchase price of slightly less than $400,000 (taking into account costs and expenses of purchase). 258The Defendant will receive out of the proceeds of sale, immediately, about $389,343 (about 44 per cent of the net proceeds of sale of the Castlecrag property), and a short time after the death of the Plaintiff, an additional amount of $174,500. In other words, he will receive, in total, 65 per cent of the net value of the estate. 259The Plaintiff should make a decision on the question whether she wishes to purchase such accommodation within 6 months from the date of the making of orders. If she wishes to do so, her solicitors should inform the solicitors for the Defendant of the property to be purchased and arrange for mortgage documentation, in registrable form, to be prepared. (I would respectfully suggest that the parties agree on the form of the mortgage documentation as part of the orders to be made in these proceedings, so as to avoid any later dispute about its terms. In this regard, the parties agreed that the Defendant's solicitors should prepare the first draft form of mortgage and provide same to the Plaintiff's solicitors for comment.) 260If the Plaintiff decides that she does not wish to purchase a property in Sydney, then, by her solicitors, she should advise the Defendant, by his solicitors, that she does not wish to do so, within that time. Then, provided that the lump sum by way of family provision order has been paid to the Plaintiff, and after the payment of her costs, the balance of the net proceeds of sale of the Castlecrag property may be distributed. 261In the event that the Plaintiff does not purchase a property in Sydney, the lump sum that she will receive absolutely (being 35% of the net proceeds of sale) will provide capital and income to pay rent as well as providing her with a capital sum for exigencies of life. If she moves permanently to Hungary, it will provide additional capital and income upon which to live there. 262The Plaintiff, or in the event of her death, the executor named in her will, should agree to advise the Defendant of each of the relevant contingency (e.g. if she does not propose to return to Sydney to occupy the property purchased) within 21 days of the relevant contingency occurring. 263In the circumstances, I direct the parties, within 14 days, to bring in Short Minutes of Order, reflecting these reasons. The Short Minutes of Order should include, at least, that: (i) The Castlecrag property (by agreement of the parties), is to be sold. (ii) The Castlecrag property should be sold as soon as reasonably possible, the conduct of such sale, being with the Plaintiff, but with her solicitors informing the Defendant's solicitors of the identity of the real estate agent to be appointed, the terms of such appointment, and the terms of the contract for the sale. (iii) Having found that the Plaintiff, Elizabeth Nagy, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the residue of the estate, a lump sum of out of the estate of the deceased. (iv) The burden of the provision made for the Plaintiff should be borne out of the residuary estate. (v) No interest is to be paid on the lump sum that the Plaintiff is to receive, if it is paid within 7 days of settlement of the sale of the Castlecrag property; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (vi) Any amount payable to the Plaintiff by way of loan, to enable the purchase of the property in Sydney is to be held in trust pending the completion of the purchase of that property and be made available to enable the whole of the purchase price and associated costs and expenses to be paid. (vii) The balance of the net proceeds of sale of the Castlecrag property, not required to pay the lump sum, the loan amount and costs, may then be made available to the Defendant or as he directs in writing. (viii) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs calculated on the indemnity basis, be paid out of the estate of the deceased. (ix) Either party has liberty to apply, in these proceedings, for consequential, or ancillary, orders for the purpose of implementing, or giving effect to, these orders. (x) The Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2014

Family Provision Act 1982(NSW)

Statute Law Amendment Relationships Act 2001(Vic)s 1(2))

Succession Amendment (Family Provision) Act 2008(NSW)

"Pursuant to Uniform Civil Procedure Rules 2005(NSW)

(1995) 19 Fam LR 696

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Cases Cited (72)